Artificial Intelligence and Intellectual Property Rights

24 May 2021  Read 4213 Views

Machines were invented by man as a device to help ease his burden by doing a tedious job repeatedly and at a faster pace. Let's recall the show Karishma-Ka-Karishma or Bollywood movie Robot that all of us must have seen at least once, showings robots or machines as intelligent beings taking their own decisions, creating things, etc. Back in those days, the public perception was that intelligence in machines was just extraordinary imaginations of dreamy filmmakers and a mere part of fiction.

But after only some years, intelligent machines are reality and a part of our lives, they are more science and less fiction now. They are helping us cook, drive our cars, clean our houses and whatnot. The advancements in the field of machine learning have made machines capable of learning and performing certain tasks on their own, making them more like humans. 

Explaining Artificial Intelligence

The concept of artificial intelligence is not alien anymore. Artificial Intelligence is a rapidly growing technology that can be defined as the ability of a machine to mimic intelligent behaviour. Artificial Intelligence is a branch of computer science’s machine learning that aims to create "intelligent machines”. According to John McCarthy, the father of AI, “artificial intelligence is the science and engineering of making intelligent machines, especially intelligent computer programs.”

Ever since the advent of Artificial intelligence, the world’s opinion has split into two. The former believes that it can bring a shift in the way humans lives and would enhance it, calling it a promising technology banking on its ability to manipulate huge volumes of data quickly and efficiently, identifying patterns and quickly analysing the most optimal solution to thousands of day-to-day scenarios, the latter part believes that it will surpass human intellect in all domains and would become the strongest entities on earth.  

AI and IPR: The Tussle

The IPRs are the bunch of rights over intangible creation and innovation of the human mind, covering AI into its ambit. The protection of AI along with the work created by AI intersects with Intellectual property rights. Many believe that AI would become so capable in the coming times that it would be able to develop, file, and grant IPRs creating serious problems and threats to the basic principle of IPRs.

Copyright and AI

Copyright is an exclusive right granted over literary or artistic work to its creator. The conflict between copyright and AI is that if the work created by the machines is not copyrighted, the copyright system is seen as a system that promotes the creativity of humans over machinery, whereas if copyright protection will be accorded to the AI-generated machines, it would likely to be seen as a system where human creativity and something created by a machine is on equal pedestal.

Earlier, granting copyright to a computer-generated work was not in the picture because they were considered as mere assistance tools rather capable of making many decisions involved in the creative process without human intervention. The first time when the deliberation on the protection of a copyrightable work created by a non-human surfaced was in the famous case of ‘Monkey-selfie (2018) wherein it was held that “while monkeys can take selfies, only a human can copyright.” the panel held that the case misses out on statutory standing because the Copyright Act did not explicitly entitle animals to file copyright infringement suits.

In the Indian IPR laws, the situation is not different either. The laws empowers only a natural person to be accredited with a copyright. And that has divided the tussle between copyright and AI bifold, first if an AI creates some original work without human intervention, who would be its copyright owner, the one who created the AI, or the one who owns the AI. Second, if the AI infringes someone’s copyright without human intervention, then who would be liable for that? The creator of the one who owns the AI. 

At this point one can assume that AI would be created as well as owned by a natural person in the near future as well.  And if this scenario changes with the progress in technology, then we may have to look at amending laws. 

Trademark and AI

E-commerce companies use AI to recommend products to buyers by analysing several factors like search history, buying profile, and past purchases. A Trademark is a sign that distinguishes the goods and services of one enterprise or manufactures from those of other enterprises or manufacturer and thereby acting as a source identifier helping consumers to identify the brand they like/trust and wish to buy from. To date, there is only one proper case regarding the interaction between Artificial Intelligence framework and trademarks. 

In the case of Cosmetic Warriors and Lush v and Amazon EU (2014) the court has reprimanded Amazon for infringing upon the Lush trademarks. Amazon brought the keyword Lush and whenever the word “Lush” is searched on Google it redirects the customer to the Amazon website. Even if the Lush word is searched on Amazon’s website, the AI of the website is suggesting related products to the lush products but not exactly the Lush products.

Although  amazon has not been selling lush products, but AI product system is suggesting similar products based on the keyword search on the website which is an implied infringement. And the court ruled that Amazon is accountable for the infringement and further stated that such instances are bound to rise once AI becomes a customer. The way AI controls the choices of the consumer and manipulates their decision-making, such cases are likely to increase in the future until the issue is addressed plugging its loopholes.

Patents and AI

Patents can be described as the exclusive rights that are granted over inventions to its holder to exclude others from making, or using the patented invention for a limited term. 

The connection between AI and patents stems from the fact that AI can now generate inventions on its own. It's important to note that patents for AI technologies are constantly being asserted by humans, and it's becoming a legal debate whether this should be allowed to occur, whether humans should be able to assert and misuse these inventions. The computer-assisted inventions under the patent regime have been the subject of lengthy discussions in many countries around the world. The European Patent Office has pitched that patents cannot be granted to AI computation models unless they have “further technical effect” beyond normal interaction between the program and the computer. 

In Uk, the presence of the name of a human inventor is required to acquire a patent over an AI-generated invention, while the United States Patent and Trademark Office has decided that an Artificial Intelligence’s invention cannot be credited to its name owing to its non-natural human existence. As per Indian patent laws, patent protection is offered to the first and true inventor, the same being a ‘natural person’.

In all these frameworks the liability arising out of an act of AI continues to be of grave concern and with legislations being ambiguous, a number of problems would arise in protecting and enforcing the AI inventions.


It is clear from the above discussion that changes in the regulations have not been in line with the dynamic development in this technological field. The fact that AI has a significant presence in our daily lives is hard to ignore and it is high time to revisit our existing laws to remodel them while considering the views and opinions of the stakeholders. It is most important that our laws are geared well enough to let us reap the benefits of technology without it affecting our rights.

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